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-- THE ARCHIVE --

UNITED STATES

The Plain Dealer, Cleveland, Ohio, 1 February 2005

Former chief says no one protested paddling

By James EwingerPlain Dealer Reporter

Warren -- A former senior
police official took the witness stand in his own defense Monday,
sticking by his claim that no one ever complained about his
practice of paddling boys and young men who broke minor laws.

James Martin, 52, spent
the entire day on the witness stand in Trumbull County Common
Pleas Court, where he is on trial on dozens of charges -- most of
them misdemeanors and all of them related to his program for
first-time offenders.

He has never denied
using a long wooden paddle and testified that he began the
program in Howland Township in the early 1970s. He was forced to
shut that down when Howland got a new police chief in 1993.
Martin was a captain there.

But he started the
program in neighboring Fowler Township when he became the
part-time police chief there in 1997. He retained the jobs in
both townships until he retired last year.

During Assistant
Prosecutor David Toepfer's aggressive cross-examination Monday
afternoon, Martin admitted that he never told Fowler Township
trustees he was paddling the boys.

Common Pleas Judge
Andrew Logan has allowed lawyers for both sides a great deal of
latitude in their style of questioning.

Defense attorney
Dominic Vitantonio presented a large part of his theory of the
case as he cross-examined more than 30 prosecution witnesses last
week, telling them - and the nearby jury - that Martin acted to
reform the boys and young men and videotaped some of the
paddlings to document the absence of abuse and that all
participants agreed to it instead of receiving jail time,
criminal records or fines.

The foundation for
Toepfer's questioning Monday was that American government uses a
system of checks and balances to prevent abuses of power.

Toepfer argued,
indirectly, that there were no limits on Martin's program because
none of his supervisors had the full picture of his activities,
because no judge or juvenile-justice official endorsed the
paddling and because his standards for the use of physical
punishment seemed to be inconsistent at best.

Martin testified that
when Steve Lamantia became Howland police chief in 1993, he shut
down Martin's original diversion program because the department
was too small for a specialized juvenile officer and because the
chief considered the program antiquated. But Martin produced a
letter in which Lamantia also called the program effective.

Toepfer produced
another letter Monday, this one from the Trumbull County
Children's Services Board, recommending that the Howland program
eliminate the paddling altogether.

Martin testified that
the CSB letter was prompted by a single abuse complaint that he
said was found to be unsubstantiated.

Martin also said people
have focused on the paddling but ignored other facets of the
program, including his insistence on good grades, obedience at
home and no tobacco, drug or alcohol use.

Final argument is
expected this afternoon, and the jury is likely to begin
deliberating tomorrow.

The Vindicator, Youngstown, Ohio, 1 February 2005

Ex-chief defends program

Having the teens decide their consequences gave them a 'good
vibe,' Martin said

WARREN — James Martin said he was given little guidance as
Fowler Township's police chief, other than being told by trustees
they didn't want a lot of people being arrested or charged.

"It wasn't their thing," Martin testified Monday in
his defense for his Trumbull County Common Pleas Court jury
trial.

Hired in Fowler in 1997, Martin said he realized that
juveniles who had made "bad choices" needed an
"in-between step of diversion" rather than juvenile
court.

So, he began a diversion program in Fowler similar to one he
was told to stop in Howland in 1993 by then-Chief Steve Lamantia.

Howland trustees, Martin recalled, had complained about a
Trumbull County Children Services report that alleged excessive
force. "I was cleared of any wrongdoing in that," he
noted.

Children services, however, had recommended changes if the
program continued. With Fowler's program, Martin said he drew up
new parental consent forms and other documents.

Not much feedback came from Fowler trustees to their new chief
when he'd ask about various things, Martin recalled. "The
comment I got most often was, 'We hired you to be the chief —
that's your job.'"

He started the Fowler diversion program for juveniles in
2000-01. "There was a need for it. It worked. It was a good
program," he said.

Paddling the young male offenders, or giving them
"swats," was one facet of a multidisciplinary approach,
Martin testified. Also involved was grounding, early curfews,
restricted vehicle use, community service details, and being
respectful to parents.

Rules were to be memorized, including No. 15 — being told
only once to complete chores. "Parents liked that,"
Martin said.

Martin and defense attorney Dominic Vitantonio spent all day
Monday methodically reviewing his documentation for nearly a
dozen of the juveniles that had been in the Fowler diversion
program.

All program facets were explained to parents over a one-hour
meeting and none of them complained at first about the swats,
Martin recalled.

The juveniles had gotten in trouble for speeding, theft by
deception, drug abuse, domestic violence, fleeing and eluding,
aggravated menacing, and shooting at passing cars with a BB gun.
They were seen as good enough kids for the diversion program,
having no previous serious juvenile records.

Martin kept track of their progress, and number of swats
received, in their files. He said he'd have the youths prioritize
appropriate consequences — including swats — for their
actions in order of severity.

"You ask the kids to say, 'What do you think you deserve
for your consequences? What do you think is reasonable," he
said. "It all gave the kids a good vibe and a good attitude
to the program."

Swats could be suspended on condition of good behavior, Martin
testified. Some parents eventually did complain, and he said
other consequences were arranged for correcting behaviors.

Martin retired last year.

If convicted he could face two years in prison. His indictment
has now been amended from 52 to 36 counts.

Prosecutors dismissed eight of 20 counts of dereliction of
duty, seven counts of unauthorized photography, and one of two
counts of felony theft in office. There are 11 counts of assault
and 12 counts of using a sham legal process.

The swats were videotaped without knowledge of the juvenile
offender or parents, testimony has shown.

In Howland, where Martin was a full-time police captain until
retiring last year, young men were being referred to his Fowler
program. This was based upon his review of their cases or
referral from others.

One of the Howland participants was Christian Mikusevich of
Stillwagon Road, who on Jan. 7 filed a civil lawsuit against both
townships, their officials and Martin seeking more than $200,000.
A process server gave Martin a copy of this lawsuit during a
break in the trial Monday. Mikusevich claims pain, suffering,
embarrassment and other injuries.

Mikusevich in fall 2003 had a lawyer call Martin seeking
options other than swats, such as community service. But
Mikusevich, who had failed to memorize some of the program's 17
rules, wanted the work details changed back to swats, Martin
recalled.

The Vindicator, Youngstown, Ohio, 2 February 2005

Jury starts deliberating in James Martin trial

Consider the bias of some of the witnesses, the defense
lawyer urged

WARREN — A jury began deciding if James Martin, former
Fowler Township police chief and ex-Howland police captain, took
official records and ran a sham legal process for paddling young
men.

"There's a lot of stuff here that appears to be
suggestive, but it's all smoke and mirrors and other irrelevant
stuff," defense lawyer Dominic Vitantonio told jurors during
his closing argument Tuesday.

Swatted himself

To illustrate his point, he produced Martin's paddle and
swatted himself loudly on the upper leg four times. "Look at
this thing. It's so flimsy," he said. "It makes some
noise. But so what?"

If it stung kids participating in Martin's juvenile diversion
program a little bit, "That's what they were there
for," he said.

A jury in Trumbull County Common Pleas Court began
deliberating at 3:25 p.m. Tuesday after receiving instructions
from Judge Andrew Logan. The jurors went home overnight and were
to resume work this morning.

Argued for defendant

Vitantonio has argued that the evidence shows Martin ran an
effective juvenile diversion program that kept wayward teens out
of court, and taught them the value of work and good behavior.

David Toepfer, an assistant Trumbull County prosecutor, argued
Martin had no authority to run his program outside of court
supervision, to paddle and videotape young men as part of the
program, or to keep case files at home.

Martin's amended 36-count indictment is for 12 counts of
dereliction of duty, one count of felony theft in office, 11
counts of assault and 12 counts of using a sham legal process.

Even if jurors believe Martin made a "bad choice,"
they should see by applying the evidence that he's innocent and
being made a scapegoat, the defense lawyer said.

Six juveniles have civil actions pending against Martin
seeking monetary damages. "You are supposed to consider the
bias or interest of the witnesses," he told the jurors.

Vitantonio methodically reviewed each count in Martin's
indictment with the jurors, noting that the evidence applies to
each count separately and that their task is "going to be
intellectually difficult."

What he faces

If convicted Martin could face two years in prison.

A lot of Vitantonio's argument centered on whether Martin was
expressly granted or forbidden certain powers by law, regarding
traffic cases, running a diversion program or maintaining
records. Martin issued documents "in his capacity as the
boss of the police department," his lawyer said.

State and federal officials began investigating Martin's
juvenile diversion program in March 2004. The program was being
operated out of the Fowler Township Police Department, but until
1993 ran out of Howland's department.

Martin retired from the part-time Fowler and full-time Howland
jobs last year. His personal testimony centered on how the
program had the young men learn to follow 17 rules and accept
discipline, including making restitution to victims and corporal
punishment.

The swats were videotaped without knowledge of the juvenile
offender or parents, testimony has shown. During the course of
his weeklong trial, teen boys testified that they and their
parents consented to participating in Martin's program. None knew
that they had been videotaped getting paddled.

Claimed liability reasoning

Martin said he made the videos for liability protection. The
prosecution, though, noted they show no faces and are not clearly
labeled with times, dates or names.

The jurors will review the videos. In these there is no
evidence of physical harm, Vitantonio said. "A lot of these
kids testified the swat was the easy way out, despite what it
sounds like," he said.

Officials from both the Howland and Fowler departments
testified about what they knew of Martin's program.

Howland Police Chief Paul Monroe testified that Martin's
program in Fowler was "a sham" legal process, a serious
error in judgment and a crime. He said it would be unlawful on
grounds of dereliction of duty and assault.

Steve Lamantia, Monroe's predecessor, testified that law
enforcement officers at any level have no right to paddle.
Lamantia also said township officials' concern about juvenile
paddlings prompted Martin's removal from that program in Howland
in 1993.

State investigators described how documents and videotapes
were removed from both the Fowler department and Martin's home
based on search warrants. Among items retrieved was a computer
disc called "swat training" that showed the youths
being paddled at the side of a desk.

Both Monroe and Lamantia testified to how official records are
to be kept only at the police station, unless they are being
used, for example, at a trial. Copies could be made, but taking
originals home was not allowed.

"The purpose of a diversion program is not to give
anybody any kind of an official record," Vitantonio noted.
"This is his property. They're his records, he's entitled to
keep them, this is his program ... What are they saying? That he
stole them from himself?"

The Plain Dealer, Cleveland, Ohio, 4 February 2005

Ex-chief acquitted of assault charges

Paddling spawned Trumbull case

By James EwingerPlain Dealer Reporter

Warren - A former
police chief said he was vindicated Thursday when a Trumbull
County jury acquitted him of 10 assault charges for paddling boys
and young men.

Jurors convicted James
Martin on some related charges, but the assaults were the
foundation of the state's case. They appear to have accepted
prosecutors' contention that Martin exceeded his authority,
because jurors convicted him on 14 counts of conducting a sham
legal process and four counts of dereliction of duty.

Martin never denied
performing the spankings and maintained they were part of his
diversion program in Fowler Township. They were designed to
penalize first offenders accused of minor crimes and traffic
violations.

Prosecutors argued that
he had no authority to run the program, deceived township
trustees, and intimidated the boys and young men into
participating instead of performing other punishments such as
cleaning the police station toilets with a toothbrush.

Martin's attorney,
Dominic Vitantonio, argued that there was no crime, that
participation was voluntary and that Martin genuinely wanted to
rehabilitate the offenders. Martin went so far as to take one to
church, get another a job, and compel all to get good grades,
obey their parents and avoid drugs, alcohol and cigarettes,
Vitantonio said.

The jury deliberated
for two full days, arriving at a decision late Thursday
afternoon. They had indicated to Common Pleas Judge Andrew Logan
that they were deadlocked on all the assault charges Thursday
morning. A day before, they had asked Logan for the legal
definition of injury, which is an element of assault.

Vitantonio has asked
Logan to throw out the sham-process convictions because the law
says the sham must be conducted in support of another offense,
and Martin was cleared of the assaults.

He was acquitted of
theft in office. He had been accused of illegally taking police
records to his home. Vitantonio said he often ran the Fowler
department out of a makeshift office there.

Martin had been
Fowler's part-time police chief since 1997 and continued to serve
as a captain in neighboring Howland Township. He retired from
both posts last year when he was indicted.

Outside the courthouse,
which dominates downtown Warren, Martin said he will resume
what's left of his life.

"I have family. I
have children and grandchildren. I am retired, and I have my
church," he said. "I still want to help kids."

Martin, who belongs to
North-Mar Church in Warren, said he will resume his participation
in the youth program there. He withdrew from that when the
criminal charges were brought, he said, because he didn't want
people questioning the church program.

Martin spent 30 years
in law enforcement, and this was the first time that he was on
the other side of a criminal trial.

Much was made of video
images of the spankings found in his bedroom. Logan threw out
more than a dozen counts of unauthorized photography. Martin said
he shot the video for liability purposes, to document that no one
was abused during the paddlings. He said he stored a lot of
records in the bedroom and had no machinery for watching videos
there.

He said that for months
local news media trumpeted the allegation that he had done
bare-bottom spankings even though there was never any suggestion
of that, no evidence and therefore no testimony at trial.

"But prosecutors
did nothing to stop that," he said, complaining that it was
designed to bias prospective jurors. "I can see how that can
ruin peoples' lives," he said. "I've been battling this
for 10 months."

In all, the jury
considered 36 charges and convicted on 18, acquitted on 17 and
deadlocked on one. He was convicted of all 14 sham charges and
four dereliction counts. He was acquitted of all 10 assaults, six
derelictions and the lone felony, theft in office. The panel
deadlocked on a single assault charge. Sentencing is March 1, and
Martin is unlikely to get any jail time.

Tribune Chronicle, Warren, Ohio, 4 February 2005

Jury splits verdicts

By Christopher BobbyTribune Chronicle

WARREN - James Martin expressed relief and mixed emotions
Thursday after a jury spent about 17 hours over three days before
delivering a split verdict that cleared him on the most serious
of 36 charges linked to his paddling teen offenders in a
self-imposed diversion program.

Martin, a veteran lawman who was described by a character
witness as a church-goer, praised his attorney and hugged his
family members, some of whom smiled and others who wore puzzled
looks.

The panel of six men and six women found the former Fowler
police Chief and former Howland captain innocent on the only
felony charge of theft in office that accused him of stealing
Howland Township property in the form of outdated diversion
program files from the 1970s and 1980s.

The files that outlined punishment for teenage boys, including
deliberate swats with a wooden paddle, were found in the basement
of Martin's home.

Earlier Thursday, the jury had told Judge Andrew Logan they
were unable to reach decisions on 11 assault charges. Eventually,
they found Martin, 52, innocent on all but one of the counts that
were based on the paddlings. The remaining assault charge - on
Ritchie Wolfe, who testified about running from the police
station in tears after his first swats - was undecided.

On 12 counts of dereliction of duty, the jury was split with
six counts guilty and six counts innocent.

Jurors found Martin innocent of those traffic tickets or
violations he didn't issue personally, relying instead on
referrals from other officers. He was found guilty of the one
time he did issue the ticket himself or counts directly tied to
the unsanctioned diversion program.

Martin was found guilty of all 12 counts of using a sham legal
process. Martin's attorney Dominic Vitantonio said he will file
court papers with the judge by Feb. 17 asking that he throw out
those convictions because, he said, the assaults, of which Martin
was cleared, would have been needed to facilitate a sham legal
process. He said he'll argue that innocent verdicts on the
assaults should automatically mean innocent verdicts on the sham
charges.

Prosecutors David Toepfer and Michael Burnett will respond to
Vitantonio's arguments by Feb. 25. Toepfer said he will argue
that the convictions should stand despite Martin being cleared of
the assaults because he said only intent is needed to get a
conviction on a sham legal process charge.

Even if Logan does not return a decision favorable to the
defense, Vitantonio said he is confident he could win at the
appellate level.

Logan set a sentencing date for March 1.

"There was a true sense of justice in this case. Assault
was the main issue. These allegations should have been dealt with
administratively rather than in a criminal court," Vitantonio
said.

Toepfer praised jurors for sorting through the allegations.

"Anytime you deal with corporal punishment it's
difficult. I'm not surprised they didn't find the paddlings
criminal. A lot of people still believe in corporal punishment,"
Toepfer said. "But the jury did find a clear case of abuse
of power here."

The Wolfe boy, accompanied by his mother, told reporters that
he expected more guilty verdicts against Martin. His family and
at least four others have filed civil lawsuits in federal court
against Martin and the two townships he worked for, seeking
monetary damages for civil rights violations.

Prosecutors last week dropped all charges pertaining to
Martin's video-taping of the paddlings, which Martin said were
only to assure that no abuse was taking place during the
punishment. The defendant also said the swats were only one form
of punishment along with obeying home and school rules, curfews,
drivers license suspensions and community service.

The jury asked only one question Wednesday when they wanted a
dictionary, seeking an accurate definition of "injury."

The Plain Dealer, Cleveland, Ohio, 5 February 2005

Civil suit dismissed against former chief cleared in paddlings

Warren - Retired Fowler
Township Police Chief James Martin, cleared in a jury trial of
assault charges for paddling young men, got more good news
Friday.

A federal magistrate
threw out a civil suit that accused Martin of violating four
boys' constitutional rights - those that forbid cruel and unusual
punishment and require equal legal protection.

Martin was happy with
the news, said Doug Suter, his lawyer. "But there is one
more case in federal court that we will be seeking to have
dismissed," said Suter.

It was filed by a fifth
boy who objected to being paddled, after having agreed to it to
avoid criminal punishments and a police record, co-counsel
Michael Passela said.

Martin plans to appeal
the Trumbull County jury ruling Thursday that found him guilty of
dereliction of duty and conducting sham legal processes, said
Dominic Vitantonio, his defense attorney. Those misdemeanors stem
from Martin's failure to inform township trustees of the details
of his self-made juvenile diversion program, and the fact that
state law gives the authority to create diversion programs to
prosecutors only.

Vitantonio predicts
that when the appeals are over, Martin, 52, will be left with
convictions on four counts of dereliction of duty, nowhere near
the 52-count indictment he originally faced in May.

Martin, a police
officer for 30 years, had been paddling and counseling troubled
boys since the 1970s, when he worked in Howland Township. He also
required them to sign contracts agreeing to obey their parents,
not smoke or drink and get good grades. He began videotaping the
paddlings after one parent accused him of child abuse a decade
ago.

Another Trumbull County Common Pleas Court case is now in federal court

On Feb. 4, U.S. Magistrate Judge George J. Limbert dismissed four civil rights lawsuits boys' parents filed against James E. Martin in federal court, concluding that Martin had qualified immunity, which protects government officials from civil damages unless they clearly violated laws or constitutional rights.

Martin once served as a part-time police chief for Fowler Township and as police captain for Howland Township. In Howland, he operated a youthful offenders' diversion program that included corporal punishment.

Judge Limbert said that to establish a violation of rights, the plaintiffs needed to show that the force applied caused severe injury, was disproportionate to the need presented, and was inspired by malice or sadism rather than a merely careless or unwise excess of zeal. The force would have to amount to brutal or inhumane abuse of official power literally shocking to the conscience, he said.

Status conference

Judge Limbert scheduled a status conference in the combined cases for Feb. 28 for the remaining defendants — Howland and Fowler townships.

Now, three more young men have filed similar lawsuits in federal court. They are Amir Shehabi of Niles-Cortland Road, Howland; Hubert Flowers of Venice Drive, Howland; and John L. Romine of Youngstown-Kingsville-Road, Fowler. Their ages were not shown in the lawsuit.

The new case is assigned to Judge Limbert.

Shehabi, while a Howland High School student in 2003, was suspended when a liquor bottle and beer bottle were found in his car, court papers show. Flowers was stopped for speeding in spring or summer 2003. Romine was accused by Martin of shooting BBs at cars in Fowler Township in summer 2002.

Shehabi, Flowers and Romine participated in Martin's diversion program in lieu of prosecution and were paddled.

The lawsuit names as defendants Martin, Fowler and its trustees, Howland and its trustees, and Howland Police Chief Paul Monroe.

The plaintiffs say Martin fraudulently had them enter into false and judicially unauthorized probation agreements, which violated their civil rights. He also videotaped the paddlings without their permission, the lawsuit states.

The young men sustained physical injuries, emotional pain and embarrassment, the lawsuit states. It was filed by Boardman attorney Alan J. Matavich and Warren attorney Sarah T. Kovoor.

The plaintiffs' attorneys ask for compensatory damages in excess of $100,000 and punitive damages in excess of $100,000.

Transferred to federal court

Last week, a case filed in January in Trumbull County Common Pleas Court on behalf of Christian Mikusevich, now 19, of Stillwagon Road, Howland, was transferred to federal court. The defendants are Martin, Howland and Fowler townships, their trustees, and Howland Township Police Department.

Mikusevich, who received a traffic citation in September 2003, participated in Martin's diversion program. The program included paddling as an alternative form of sentencing.

The Mikusevich case is expected to be combined with the lawsuit filed by Shehabi, Flowers and Romine.

Verdicts

On Feb. 3, in a related state case, a Trumbull County jury found Martin guilty of 12 counts of using a sham legal process and six dereliction of duty counts. The sham legal process involved Martin's providing youthful offenders with a document that appeared official but was not.

His lawyer plans to appeal. Sentencing is set for March 1 on the misdemeanor convictions.

The jury acquitted Martin of felony theft, 11 counts of assault and six counts of dereliction of duty.